5.  The applicant was born in Torquemada (Palencia) and lives in Madrid.
6.  On 14 June 2001 the Stock Exchange National Commission (Comisión Nacional del Mercado de Valores – “CNMV”) took the decision to take control over a registered investment agency (GESCARTERA) owing to difficulties it had encountered in discerning the economic and financial situation of the agency and the destination of the funds invested by its clients.
7.  The CNMV reported this situation to the Audiencia Nacional. On 25 June 2001 the Audiencia Nacional central investigating judge no. 3 initiated criminal investigations against executives and other people connected with GESCARTERA for alleged crimes of continuous fraud, continuous misappropriation and the continuous making of false statements in commercial documents. The applicant was investigated in his capacity as agent for one of the commercial offices of the investment agency, Asesoría y Gestión de Patrimonios, S.A. (“AGP”).
8.  Investigations were concluded on 29 June 2004 and the case was referred to the Audiencia Nacional for trial. Fourteen people, including the applicant, were summoned to the proceedings as the accused parties. The applicant was charged with continuous misappropriation and the continuous making of false statements in commercial documents. Public and private prosecutors claimed compensation from the accused under Article 116 of the Criminal Code.
9.  Others, including some close relatives of the applicant, were summoned to the proceedings under Article 122 of the Criminal Code as civilly liable in their capacity as potential gratuitous beneficiaries of the proceeds of the crime.
10.  On 25 March 2008 the Audiencia Nacional declared the applicant and some of the other accused guilty of continuous misappropriation and the continuous making of false statements in commercial documents. The court found that GESCARTERA had been subjected to premeditated, systematic and persistent asset-stripping activities by some of the accused, including the applicant, who had misappropriated funds to the prejudice of the company’s clients. The court found that the main shareholder, the director general and the deputy director general of GESCARTERA had carried out coordinated activities with the aim of taking possession of part of the funds entrusted to them, and had misappropriated them and ignored requests for information from the CNMV. It also found that documents containing false statements had been prepared and supplied to current and potential investors in order to maintain or gain them as clients for GESCARTERA.
11.  As regards the applicant, the Audiencia Nacional found that he was not a mere agent for the agency AGP but the de facto administrator of that company, that he had premeditatedly and consciously misappropriated funds invested in GESCARTERA in cooperation with the main shareholder, to the detriment of the investors, and that he had prepared and supplied documents containing false information to investors in order to gain and maintain them as clients of GESCARTERA. The Audiencia Nacional further found that in his capacity of investor the applicant owed the investment company the amount of 88,671.78 euros (EUR). This amount was the difference between the sums he had put into the investment company and those he had withdrawn from it.
12.  The applicant was sentenced to seven years’ imprisonment and to a fine of EUR 100 per day for fourteen months for continuous misappropriation and to two years’ imprisonment and a fine of EUR 100 per day for ten months for the continuous making of false statements in commercial documents. He was found civilly liable under Article 116 of the Criminal Code and was ordered, jointly with the rest of the accused found guilty, to pay compensation in the amount of EUR 87,995,626.91. This amount was an estimate of the financial losses caused to the investment company by the continuous misappropriation, to be increased by the statutory interests accrued since the date on which the CNMV decided to take control of the investment company.
13.  With respect to the civil liabilities of those other people who had been summoned to the proceedings under Article 122 of the Criminal Code, the Audiencia Nacional referred to the Supreme Court’s case-law on that provision, noting in particular that Article 122 was based on the principle that nobody should unjustly increase his or her wealth gratuitously as a result of the commission of a crime, reiterating the three requirements stipulated by the Supreme Court for Article 122 to apply, which were as follows. Firstly, there must be a natural or a legal person having gratuitously increased his or her wealth by proceeds flowing from a crime. Secondly, the beneficiary of those proceeds must have been unaware of the fact that they derived from a crime, because otherwise Article 116 of the Criminal Code would apply. Thirdly, the obligation to restore the assets or to compensate the victims of the crime was to be established in compliance with the civil legislation, compensation being limited to the actual participation in the proceeds of the person sued under Article 122. The Audiencia Nacional further noted that, according to the Supreme Court’s case-law, Article 122 regulated a “civil obligation” the basis of which was not to be found in the commission of a crime but in the obtaining of gratuitous financial gain.
14.  In the light of this reasoning, the Audiencia Nacional ordered those who had obtained financial gain from the continuous misappropriation, including some close relatives of the applicant, to reimburse it. The sum they had to reimburse was the difference between the sums they had put into GESCARTERA and those they had withdrawn from it.
15.  The applicant and some of the other parties to the proceedings, namely the applicant’s co-defendants, those who had been declared vicariously civilly liable, and those found civilly liable under Article 122 of the Criminal Code, lodged an appeal on points of law with the Supreme Court. The applicant asked to be acquitted of the crimes of continuous misappropriation and the continuous making of false statements in commercial documents. Furthermore, he argued that his gain had been lawful since it had flowed from normal investments in GESCARTERA, and he challenged the assessment made by the Audiencia Nacional of his contributions to and withdrawals from GESCARTERA.
16.  A hearing was held on 28 and 29 September 2009 which the applicant’s counsel attended.
17.  On 13 October 2009 the Supreme Court formally delivered its judgment. The court stated that the Audiencia Nacional had failed to respect the applicant’s right to the presumption of innocence. It found that there was no evidence for a conclusion that the applicant had managed the funds invested in GESCARTERA, and that therefore it was doubtful that he had taken part in the misappropriation activities with which he had been charged. It also found that there was not sufficient evidence to conclude that the applicant had taken part in the preparation of the documents containing false information with a view to attracting more investors. The Supreme Court quashed the Audiencia Nacional’s statement of facts in so far as it implied that the applicant had taken an active part in any criminal activity, and acquitted the applicant. However, it endorsed untouched the Audiencia Nacional’s statement as to applicant’s status as an investor in GESCARTERA and the amount he owed to it in that capacity; accordingly, it ordered the applicant to reimburse the above-mentioned amount of EUR 88,671.78 in application of Article 122 of the Criminal Code.
18.  In support of that conclusion, the Supreme Court referred to its reasoning in respect of the appellant M.A.V. This appellant had complained to the Supreme Court that the Audiencia Nacional had violated his right to defence when it had found him civilly liable under Article 122 of the Criminal Code despite the fact that the prosecution had not so requested in their indictment. Rather, he had been accused of misappropriation and the prosecutor had requested that he be found civilly liable under Article 116 of the Criminal Code. The Supreme Court noted that M.A.V. had not limited himself to denying the criminal character of his activities but that, on the contrary, he had argued in favour of the lawfulness of his gain as an investor in GESCARTERA; the court concluded that this defence strategy had served M.A.V. in defending him not only from the accusation of misappropriation but also from the civil liability which was ultimately found against him under Article 122 of the Criminal Code. The Supreme Court held that the same reasoning applied to the applicant.
19.  On 5 January 2010 the applicant lodged an amparo appeal with the Constitutional Court, invoking his right to a fair trial. He contended, inter alia, that the Supreme Court had recharacterised the facts so as to find him guilty in a different capacity that he was not able to challenge, namely, as an economic beneficiary of the proceeds of a crime. The Supreme Court had suddenly and surprisingly raised this issue in its examination of his appeal on points of law, in the absence of any accusation by the other parties to the proceedings or any hearing on the matter. According to the applicant, the legal requirements for finding civil liability on the part of a principal actor in a crime were quite different from those which required an economic beneficiary to refund all benefits gained as a result of criminal activity he had been unaware of. Therefore, his defence strategy would have been different had he been promptly informed of the new accusation against him.
20.  The Constitutional Court, in a decision served on 11 February 2010, declared the applicant’s amparo appeal inadmissible on account of the applicant’s failure to satisfy the requirement to justify its particular constitutional significance.